Weeding out problems with community gardens

Spring's early arrival has been a boon for garden centers as homeowners get a jump on the growing season. But anyone living in a community association should review rules and regulations before picking up a trowel.

In Portsmouth, N.H., the 23-unit Atlantic Pointe condominium association is suing two owners for planting heirloom perennials, shrubs and other greenery in the mulched common areas adjacent to their units.

The plaintiffs, who say they received permission from the developer before owners took over the association in 2010, are fighting back. They filed a countersuit that claims the board's rule against such plantings was passed illegally. They also claim their plantings beautify and improve the community and that removing them will devalue their units.

Meanwhile, daily fines that started at $25 and escalated to $50 and legal fees have run into the thousands of dollars. The association also placed liens on the plaintiffs' units. A status review is scheduled for late May.

"Condominiums have lots of rules, and rules are necessary, but this one has gone a little too far," said their attorney, Paul McEachern.

In the Chicago area, associations have varying attitudes toward the planting issue, said Marcia Caruso, president of Caruso Management Group in Naperville.

"There are two main schools of thought," she said. "One is very rigid. Associations say we handle everything. Others are more lenient. It really depends on the personality of the community and the look they want to achieve."

A few associations are so tight on funds for landscaping that they are grateful for and encourage owners to plant whatever they like, she added.

Caruso said she understands both sides. One of her client associations is re-landscaping the front yard of every home. The association saved up money for several years to afford this expensive makeover and wants to keep the new design intact.

Absolute leniency can save associations money, but it will subject them to the taste and discretion of participating owners. It's better to provide guidance, unless lawn ornaments, sprinkler systems, koi ponds, playground equipment and corn stalks are acceptable. Be aware that an owner who spreads mulch could be invalidating the warranty on the existing mulch.

"What I like is either have the money to do it all or give the homeowners choices," said Caruso. "Give them a list. You can plant, but you have to plant these things: tulips, daffodils and whatever. Control the choices, and you'll have a controlled environment."

Some associations have gardening committees that make recommendations for suitable plantings and grant owner requests, said Katherine Susmilch, president of Winston Management Group in Elmhurst.

"You submit your plans to the gardening committee and say this is what I'd like to plant," she said. "If you want to deviate from the list, you can talk to them about it."

Another way to maintain aesthetic control is through fair, reasonable rules, said association attorney Gabriella Comstock of Keough & Moody in Naperville. "Then, if the association doesn't have a lot of money, and someone says I'm willing to plant my own flowers, you know they aren't going to go too far or have too many decorations that change the feel of the community."

Comstock offered some rules to consider: Require owners to get approval before planting. Give leniency to planting behind units. Limit the size and number of gardening containers. Don't allow owners to enlarge existing beds. Rules also should require owners to maintain anything they plant.

"Some people like to plant flowers, but they don't like to weed," said Comstock. "That's an issue. The weeds can spread into the lawn areas, which increases the association's costs for weed control."

"To me, the key to a good rule or regulation strikes a balance between consistency in the community but still allows for some individuality," said Susmilch.

Periodically review your rules to make sure they still work for you, she said.

"Frequently you don't find out until after you've been burned that there was an omission that had an unintended consequence," she said. "Sometimes it goes the other way. You realize you are limiting people in a manner you never intended to."